Cite as Prino v. Simon, 606 F.2d 449 (4th Cir. 1979)
Dow Prino, Pawnbroker, d/b/a Dow's, Appellant,
v.
William E. Simon, Secretary of the Treasury, Appellee.
No. 79-1073.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 20, 1979.
Decided Oct. 3, 1979.
George A. Mills, III, Huntington, W. Va. (Greene, Ketchum &
Mills, Huntington, W. Va., on brief), for appellant.
James S. Arnold, Asst. U. S. Atty., Charleston, W. Va. (Robert
B. King, U. S. Atty., Charleston, W. Va., on brief), for appellee.
Before BUTZNER, HALL and PHILLIPS, Circuit Judges.
PER CURIAM:
The Secretary of the Treasury denied Prino's application for
renewal of his license as a dealer in firearms under the Gun
Control Act of 1968, 18 U.S.C. sections 921 et seq. based upon an
administrative determination that Prino had "willfully" violated
the Act in several respects, a statutory ground for denial. 18
U.S.C. section 923(d)(1)(C). Prino sought judicial review under 18
U.S.C. section 923(f)(3), and the district court concluded that the
application was properly denied because of willful violations.
On this appeal Prino contends that the willfulness of
violation required to deny a license should be construed to be that
required to support a criminal conviction; [footnote 1] that the
district court did not accord de novo review as contemplated by the
Act; and that the district court's finding of willful violations is
not supported by the evidence. We find no merit in any of the
contentions and affirm.
Dow Prino had operated a pawnshop and dealt in firearms and
general merchandise under the style "Dow's" in Huntington, West
Virginia, since 1954. In 1969 he was licensed under the Gun Control
Act to deal in firearms other than destructive devices and came
under the regulations of that Act. In January 1975 a special agent
of the Bureau of Alcohol, Tobacco and Firearms (ATF), U.S.
Department of the Treasury, conducted a compliance investigation of
Prino's business. He found and reported a number of violations
including, along with various technical record keeping violations,
three illegal sales of hand guns to out of state residents. On
February 15, 1975 Prino received a warning letter from the Regional
Director ATF reciting the violations found, ordering immediate
compliance with the regulations involved, advising that there would
be a re-inspection within 60 days, and warning that if violations
were then found his license would be revoked and that criminal
sanctions were possible. The re-inspection took place on May 28, 29
and 30, 1975. Again, a significant number of violations were found,
some repetitive of those first found, and the inspector also noted
that a shortage of 92 firearms was reflected in Prino's records.
Again Prino was advised of the specific violations found.
On the basis of his failure to comply with the cited
regulations, Prino's application for annual renewal of his license
was denied on July 31, 1975. Following an administrative hearing at
which Prino was represented by counsel, the Secretary of the
Treasury denied the application by final administrative decision.
Petition for judicial review by the United States District Court
for the Southern District of West Virginia was filed in December
1975, and Prino was permitted to continue his firearms business
during the pendency of the review proceeding. In March of 1978, the
district court entered an order in which it was concluded that the
judicial review to be conducted should be a de novo proceeding.
Accordingly, the court directed that "either party will be
permitted to submit such additional evidence as they may deem
relevant" and ordered that "either party shall have forty-five (45)
days from the entry of this Order in which to submit by affidavit
or exhibit any additional evidence." Finally, the court indicated
special interest in receiving evidence concerning Prino's
compliance during pendency of the review proceeding.
Pursuant to this order, another compliance inspection took
place on March 31 and April 3, 1978. Again a number of record
keeping violations were found, though some of the discrepancies
noted in the 1975 inspection were found to have been corrected "to
the extent possible." The result of this compliance inspection was
presented to the district court in affidavit form for consideration
with the administrative record. Prino submitted counter-affidavits
that tended generally to explain as inadvertent, or to show
mitigating circumstances, or to refute particular ones of the last
violations found, but the fact that some of the violations cited on
all three inspections had indeed occurred was not disputed. Prino
noted no objection to the form of the review proceeding as directed
by the district court and did not seek any opportunity to introduce
testimonial evidence or to cross-examine any of the persons upon
whose affidavits the Secretary relied in resisting Prino's
petition. Upon consideration of the administrative record and the
affidavits offered in the district court proceeding, the district
court concluded that the undisputed violations found to have
followed the initial warning given Prino in 1975 after the initial
compliance inspection were, within the meaning of the statute,
"willful," and that the Secretary's denial of license application
was therefore authorized by law. This appeal followed.
We think the standard implied by the term "willfully" in
section 923(d)(1)(C) of the Gun Control Act is appropriately that
held by this Court to be required to justify imposition of a civil
penalty under the Occupational Safety and Health Act of 1970, 29
U.S.C. section 654(a). In Intercounty Constr. Co. v. Occupational
Safety and Health Review Comm., 522 F.2d 777, 779-80 (4th Cir.
1975), we defined it as follows:
"'[W]illful' means action taken knowledgeably by one subject
to the statutory provisions in disregard of the action's
legality. No showing of malicious intent is necessary. A
conscious, intentional, deliberate, voluntary decision
properly is described as willful, 'regardless of venal
motive.'"
See also Lewis v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979);
Shyda v. Director, Bur. of Alcohol, Tobacco and Firearms, 448
F.Supp. 409, 415 (M.D.Pa. 1977). Applying this standard, the
district court's conclusion that willful violations were
established was amply supported by the evidence.
While the Secretary maintains on this appeal that the
appropriate standard for judicial review by the district court was
the familiar "substantial evidence" one, the district court instead
considered itself bound to conduct de novo review. In doing so it
considered the evidence in the administrative record plus
additional evidence received in affidavit form from both parties.
We think that de novo review is the appropriate standard. See Rich
v. United States, 383 F.Supp. 797 (S.D.Ohio 1974); Weidner v.
Kennedy, 309 F.Supp. 1018 (C.D.Cal. 1970). In view of the fact that
Prino made no objection to the particular form of proceeding
ordered by the district court, either when it was ordered or
subsequently, and that he participated in it without requesting any
evidentiary hearing to supplement the record or to conduct
cross-examination, we hold that the procedure employed here
afforded proper judicial review.
Within these principles, we conclude that the district court's
findings, upon which it concluded that Prino's license was properly
denied are amply supported in the record. Fed.R.Civ.P. 52(a).
AFFIRMED.
FOOTNOTES
1. His argument is apparently that this finding could only be based
upon a prior criminal conviction.